Fregia v. St. Clair et al

Filing 9

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 06/28/17. First Amended Complaint due : (21-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK A. FREGIA,

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Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

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Case No. 1:16-cv-01866-SKO (PC)

St. CLARI, et al.,

(Doc. 1)
TWENTY-ONE (21) DAY DEADLINE
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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Mark A. Fregia, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a

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cognizable claim upon which relief may be granted and the Complaint is DISMISSED with leave

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to file a first amended complaint.

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B.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much.

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Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e

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have never held -- and we know of no authority supporting the proposition -- that a pleading may

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be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8,

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and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

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678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth

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“sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal,

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556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but

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legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d

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962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,
580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally
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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).

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If he chooses to file a first amended complaint, Plaintiff should make it as concise as

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possible by simply stating which of his constitutional rights he believes were violated by each

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defendant and the factual basis for each claim. Plaintiff need not cite legal authority for his

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claims in a second amended complaint as his factual allegations are accepted as true. The

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amended complaint should be clearly legible (see Local Rule 130(b)), and double-spaced

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pursuant to Local Rule 130(c).

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2.

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Federal Rule of Civil Procedure 18(a) & 20(a)(2)

Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an

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original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as

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alternate claims, as many claims as the party has against an opposing party. However, Plaintiff

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may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a),

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20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605,

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607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the
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claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences,

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and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers,

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130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America,

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623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a)

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will the Court review the additional claims to determine if they may be joined under Rule 18(a),

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which permits the joinder of multiple claims against the same party.

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The Court must be able to discern a relationship between Plaintiff’s claims or there must

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be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of

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constitutional violation (i.e. retaliation by different actors on different dates, under different

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factual events) does not necessarily make claims related for purposes of Rule 18(a). All claims

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that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is cautioned

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that if he fails to elect which category of claims to pursue and his amended complaint sets forth

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improperly joined claims, the Court will determine which claims should proceed and which

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claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir. 2013).

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Whether any claims will be subject to severance by future order will depend on the viability of

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claims pled in the amended complaint.

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3.

Linkage and Causation

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,

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or causal connection, between each defendant’s actions or omissions and a violation of his federal

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rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);

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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
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Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572

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F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342.
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Exhibits

Plaintiff’s Complaint is comprised of six pages of factual allegations followed by 69 pages

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of exhibits. The Court is not a repository for the parties’ evidence. Originals, or copies of

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evidence (i.e., prison or medical records, witness affidavits, etc.), need not be submitted until the

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course of litigation brings the evidence into question (for example, on a motion for summary

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judgment, at trial, or when requested by the Court). If Plaintiff attaches exhibits to his amended

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complaint, each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example,

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Plaintiff must state “see Exhibit A” or something similar in order to direct the Court to the

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specific exhibit Plaintiff is referencing. If the exhibit consists of more than one page, Plaintiff

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must reference the specific page of the exhibit (i.e. “See Exhibit A, page 3”).

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At this juncture, the submission of evidence is premature as Plaintiff is only required to

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state a prima facie claim for relief. For screening purposes, the Court must assume that Plaintiff’s

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factual allegations are true. It is unnecessary for a plaintiff to submit exhibits in support of the

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allegations in a complaint. Thus, if Plaintiff chooses to file a first amended complaint, he should

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simply state the facts upon which he alleges a Defendant has violated his constitutional rights and

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refrain from submitting exhibits. Further, while it appears that Plaintiff had purely charitable

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motives for attaching a copy of his book as an exhibit (Doc. 1, pp. 17-75), he should refrain from

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submissions that are not related to the subject matter of the action.
DISCUSSION

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Plaintiff’s Allegations

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A.

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Plaintiff is currently incarcerated at Sierra Conservation Center (“SCC”) in Jamestown,
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California, where the instances he contends violated his civil rights occurred. Plaintiff names the

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following prison staff as Defendants: SCC Chief Medical Executive (“CME”) J. St. Clair, M.D.;

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SCC Chief Executive Officer (“CEO”) R. Duncan; and Deputy Director J. Lewis. Plaintiff seeks

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monetary and injunctive relief.

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Plaintiff alleges that on March 12, 2015, CME St. Clair denied his inmate appeal (“IA”) at

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the first level; on June 5, 2015, CEO Duncan denied it at the second level; and Dep. Dir. Lewis

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denied it at the third level on January 6, 2016. Plaintiff attached copies of IA SCC HC 15011791

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(“the IA”) to the Complaint. (Doc. 1, pp. 7-16.) In the IA, Plaintiff requested “to be taken off of

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insulin and testing because [his] hemoglobin AIC level meets the CDCR standard for diabetic

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(sic) to be treated orally instead of injections, if so desired.” (Id., pp. 7, 9.) Plaintiff indicates that

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he is aware that, in the past, SCC puts inmates who refuse insulin in suicide cells which he does

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not want. (Id., p. 9.)

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For the reasons discussed below, Plaintiff fails to state any cognizable claims. He is,

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however, provided the applicable legal standards for his stated claims and an opportunity to file

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an amended complaint.

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B.

Legal Standards
1.

Deliberate Indifference

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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a

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prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton

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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir.1997) (en banc))

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants= response to the need was deliberately indifferent.”
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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096

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(quotation marks omitted)).

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As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,

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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s

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exposure to asbestos, which resulted in coughing, throat and eye irritation and frequent nose-

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bleeds, is accepted as a serious medical need.
As to the second prong, deliberate indifference is “a state of mind more blameworthy than

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negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or

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safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate’s claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.

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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison

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official should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
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Plaintiff fails to establish that any of the Defendants acted in deliberate indifference to his

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serious medical need. If anything, Plaintiff’s allegations show that Defendants felt that Plaintiff’s

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desire to no longer receive insulin would create a substantial risk of serious harm -- which is not

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cognizable.

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2.

Inmate Appeals

All of Plaintiff’s claims are based on the handling of his inmate appeal. “[A prison]

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grievance procedure is a procedural right only, it does not confer any substantive right upon the

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inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568

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F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)

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(no liberty interest in processing of appeals because no entitlement to a specific grievance

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procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance

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procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). “Hence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.” Azeez v. DeRobertis, 568 F. Supp. at 10;

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Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing prisoner’s administrative appeal cannot serve as the basis for

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liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows

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about a violation of the Constitution, and fails to cure it, has violated the Constitution himself is

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not correct. “Only persons who cause or participate in the violations are responsible. Ruling

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against a prisoner on an administrative complaint does not cause or contribute to the violation. A

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guard who stands and watches while another guard beats a prisoner violates the Constitution; a

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guard who rejects an administrative complaint about a completed act of misconduct does not.”

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George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645,

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656-57 (7th Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters,

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97 F.3d 987, 992-93 (7th Cir.1996).

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Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals,

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Plaintiff fails, and is unable to prove the elements of a constitutional violation purely for the

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processing and/or reviewing of his inmate appeals.
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However, Plaintiff may be able to prove the elements for a claim under the Eight

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Amendment for deliberate indifference to his serious medical needs if medical personnel who

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were involved in reviewing his inmate appeals had both medical training and the authority, but

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failed, to intercede and/or to take corrective action. If Plaintiff meets his burden of proof as to the

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elements of a claim against a defendant for deliberate indifference to his serious medical needs,

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he will likely also be able to meet his burden of proof as to the elements of a claim against

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defendants with medical training if they reviewed and ruled against Plaintiff in his medical

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grievances/appeals on that same issue. However, since as discussed above, Plaintiff has not

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stated a deliberate indifference claim, he cannot proceed against anyone for the handling of his

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inmate appeal.
At least one Appellate Circuit has held that “[o]nce a [non-medical] prison grievance

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examiner becomes aware of potential mistreatment, the Eight Amendment does not require him

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or her to do more than ‘review [the prisoner’s] complaints and verif[y] with the medical officials

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that [the prisoner] was receiving treatment.’ ” Greeno, 414 F.3d at 656 citing Spruill v. Gillis,

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372 F.3d 218, 236 (3rd Cir. 2004) (non-physician defendants cannot “be considered deliberately

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indifferent simply because they failed to respond directly to the medical complaints of a prisoner

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who was already being treated by the prison doctor” and if “a prisoner is under the care of

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medical experts . . . a non-medical prison official will generally be justified in believing that the

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prisoner is in capable hands.”) This Court concurs with the analysis in Greeno and Spruill. Thus,

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non-medical prison personnel, and lower medical staff such as CEO Duncan and Dept. Dir.

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Lewis, cannot be held liable for their involvement in processing and/or ruling on inmate appeals

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for medical issues where Plaintiff was under the care of a physician for those issues.
3.

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Violation of Title 15
a.

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Government Claims Act

Under the Government Claims Act (“GCA”),1 set forth in California Government Code

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sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public

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The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior
Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than
California Tort Claims Act).

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employee or entity unless the plaintiff first presented the claim to the California Victim

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Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on

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the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil

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complaint for money or damages first be presented to and rejected by the pertinent public entity.”

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Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this

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requirement is “to provide the public entity sufficient information to enable it to adequately

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investigate claims and to settle them, if appropriate, without the expense of litigation.” City of

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San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797 (1974) (citations omitted).

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Compliance with this “claim presentation requirement” constitutes an element of a cause of action

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for damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal.4th 1234,

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1244, 13 Cal.Rptr.3d 534 (2004). Thus, in the state courts, “failure to allege facts demonstrating

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or excusing compliance with the claim presentation requirement subjects a claim against a public

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entity to a demurrer for failure to state a cause of action.” Id. at 1239, 13 Cal.Rptr.3d 534 (fn.

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omitted).

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Federal courts must similarly require compliance with the GCA for pendant state law

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claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d

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702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477

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(9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983,

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may proceed only if the claims were first presented to the state in compliance with the claim

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presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627

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(9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Plaintiff

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fails to set forth any allegations which show he complied with the GCA so as to be permitted to

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pursue claims for violation of California law in this action.

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b.

No Private Enforcement

Plaintiff alleges Defendants violated sections 3351 and 3084.1(d) of Title 15. The

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existence of such regulations governing the conduct of prison employees and for prosecution of

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criminal activities does not necessarily entitle Plaintiff to sue civilly to enforce the regulations, for

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criminal prosecution, or to sue for damages based on their violation. The Court has found no
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authority to support a finding that there is an implied private right of action under Title 15.

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Where a private right of action has been implied, “‘there was at least a statutory basis for

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inferring that a civil cause of action of some sort lay in favor of someone.’” Chrysler Corp., 441

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U.S. at 316 (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)). There is no indication that sections

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3351 and 3084.1 permit the filing of a civil enforcement action of any kind by Plaintiff. Cort,

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422 U.S. at 79-80; Keaukaha-Panaewa Cmty. Ass=n v. Hawaiian Homes Comm=n, 739 F.2d 1467,

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1469-70 (9th Cir. 1984). Given that the statutory language does not support an inference that

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there is a private right of action, the Court finds that Plaintiff is unable to state any cognizable

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claims upon which relief may be granted based on the violation of Title 15 regulations.
c.

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Supplemental Jurisdiction

Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has original

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jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the

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action within such original jurisdiction that they form part of the same case or controversy under

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Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists under '

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1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is

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discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district

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court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . .

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the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. '

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1367(c)(3); Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); Herman

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Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001); see also Watison v.

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Carter, 668 F.3d 1108, 1117-18 (9th Cir. 2012) (even in the presence of cognizable federal

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claim, district court has discretion to decline supplemental jurisdiction over novel or complex

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issue of state law of whether criminal statutes give rise to civil liability). The Supreme Court has

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cautioned that “if the federal claims are dismissed before trial, . . . the state claims should be

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dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). If

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Plaintiff has complied with the CTCA, jurisdiction over his claims under California law will only

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be allowed to proceed in this Court so long as he has pending federal claims.

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4.

Injunctive Relief

Plaintiff seeks injunctive relief via medical treatment for various ailments and requests

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that his housing not be changed in retaliation for filing this suit. However, federal courts are

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courts of limited jurisdiction, and in considering a request for injunctive relief, the Court is bound

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by the requirement that as a preliminary matter, it have before it an actual case or controversy.

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City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983); Valley Forge

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Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471

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(1982). If the Court does not have an actual case or controversy before it, it has no power to hear

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the matter in question. Id. Here, there is no case or controversy before this Court as Plaintiff has

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not stated any cognizable claims.

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If Plaintiff eventually states a cognizable claim, he must next establish he has standing to

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seek preliminary injunctive relief. Summers v. Earth Island Institute, 555 U.S. 488, 493-94, 129

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S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff

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“must show that he is under threat of suffering an ‘injury in fact’ that is concrete and

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particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be

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fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable

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judicial decision will prevent or redress the injury.” Summers, 555 U.S. at 493 (citation and

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quotation marks omitted); Mayfield, 599 F.3d at 969. Requests for prospective relief are limited

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by 18 U.S.C. ' 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court

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find the “relief [sought] is narrowly drawn, extends no further than necessary to correct the

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violation of the Federal right, and is the least intrusive means necessary to correct the violation of

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the Federal right.”

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The pendency of this action does not give the Court jurisdiction over prison officials in

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general or over Plaintiff=s mail issues. Summers, 555 U.S. at 492-93; Mayfield, 599 F.3d at 969.

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The Court’s jurisdiction is limited to the parties in this action and to the cognizable legal claims

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upon which this action is proceeding. Id. Thus, the Court does not have jurisdiction to dictate

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where Plaintiff is housed, or to restrain actions of prison staff. However, if Plaintiff experiences

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acts he believes amount to retaliation for filing this action, he may seek redress via separate suit.
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ORDER

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For the reasons set forth above, Plaintiff’s Complaint is dismissed with leave to file a first

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amended complaint within twenty-one (21) days. If Plaintiff needs an extension of time to

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comply with this order, Plaintiff shall file a motion seeking an extension of time no later than

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Twenty-one (21) days from the date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff’s first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and

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plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555

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(2007) (citations omitted).

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Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 220.

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The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

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by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff

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may not change the nature of this suit by adding new, unrelated claims in his first amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s Complaint is dismissed, with leave to amend;
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2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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3.

Within twenty-one (21) days from the date of service of this order, Plaintiff must

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file a first amended complaint curing the deficiencies identified by the Court in

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this order or a notice of voluntary dismissal; and
4.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order and for failure to state a cognizable claim.

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IT IS SO ORDERED.
Dated:

June 28, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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